“Directly Causes”

Posted September 1, 2007
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The test for entitlement to accident benefits is contained in the Section 2(1) of the Ontario Automobile Insurance Ontario Regulation 403/96, Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, as follows:

2(1) In this Regulation, “accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental devise; (“accident”)

The importance of this section is the use of the words “directly causes”. This would appear to be an attempt to create a limitation on what had previously been the entitlement of an injured claimant to benefits arising as a result of the motor vehicle accident. In the case of Desbiens v. Mordini [2004] O.J. No. 4735, Ontario Superior Court, the Court said that to require an insured person to trace “the chain of causation” with precision is inconsistent with the policy. The extent of coverage for the consequences of an accident is governed by the “as a result of” test, which requires proof that an accident materially or significantly contributed to the disability or impairment that gives rise to the claim for benefits.

A major case involving the interpretation of “directly causes” is the case ofGreenhalgh v ING Halifax Insurance Co. (2004). In that case, the Court of Appeal applied the test as set out in “Chisholm” as follows: “if the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries, that cannot be said to be part of the ordinary course of things? In that sense, can it be said that the use or operation of a vehicle was a ‘direct cause’ of the injuries?” In the particular case, the plaintiff had left her motor vehicle in winter when it became disabled and she subsequently froze. The Appeal Court found that her injuries were not the “direct result of an accident” within the meaning of the legislation. In a later case called Sohi v ING Insurance Company of Canada, the Director Delegate confirmed that the definition of “accident” requires a “direct causal connection between the use or operation of an automobile and every impairment that gives rise to a claim for benefits”.

I would suggest the Court in the final analysis will probably stretch most circumstances to include indirectly caused consequences, although this issue is yet to be firmly dealt with by the Court.

At the very least, the words “directly causes” are likely to effect cases in which there is intervening medical malpractice, as opposed to unintended consequence of the medical treatment – which do not amount to medical malpractice. In the former case, the plaintiff will not be compensated for the consequences of the malpractice. In the latter case, the plaintiff will probably recover from his or her own automobile insurer, the unfortunate results of treatment for the “directly caused” injury.

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